Appeal from order of Court of Common Pleas of Lehigh County, June T., 1973, Nos. 578 and 549, in case of Haines Industries, Inc., Robert C. and Margaret G. Haines, husband and wife, David E. Haines and Arlene D. Haines, husband and wife, and Charles D. Henley, Lewis L. Gaumer, and Leroy R. Snyder, trading as Allentown Paper Box Company v. City of Allentown.
Wallace C. Worth, Jr., Jeffrey R. Dimmich, and Worth & O'Hara, for appellant.
Mark H. Scoblionko, and Scoblionko & Scoblionko, for appellees.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Watkins, P. J.
[ 237 Pa. Super. Page 189]
This is an appeal from an order of the Court of Common Pleas of Lehigh County granting appellees' motion for summary judgment on the issue of res judicata and opening prior judgments obtained by appellant.
On March 22, 1972, the appellees filed two complaints against the City of Allentown, alleging a cause of action arising out of a fire which occurred on September 24, 1971. To both complaints, the appellant, City of Allentown, filed preliminary objections in the nature of a demurrer alleging governmental immunity from suit. On January 9, 1973, an order was entered sustaining the
[ 237 Pa. Super. Page 190]
demurrer of the appellant to both the complaints filed by the appellees and judgments were entered for the appellant. No appeal was taken.
Subsequently, the Supreme Court of Pennsylvania in the decision of Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973), overturned the doctrine of governmental immunity. On June 12, 1973, the same appellees filed another complaint against the appellant. This complaint incorporated by reference both of the prior complaints. The complaint added no new facts or averments.
On September 6, 1973, preliminary objections were filed by the appellant in the nature of a motion for a more specific pleading. By agreement between the parties, the preliminary objections of the appellant were withdrawn and the appellees and appellant entered into a stipulation that the averments of the appellees' complaint were deemed denied. The stipulation was filed on November 12, 1973. Further, the appellant filed an answer and new matter to this complaint alleging in the new matter the defense of res judicata.
On November 16, 1973, preliminary objections were filed by the appellees seeking to strike off the new matter of res judicata raised by the appellant. By an order dated February 26, 1974, said preliminary objections were dismissed. On March 20, 1974, a reply to the new matter was filed by the appellees, and subsequently, on March 28, 1974, the appellees filed a motion for partial summary judgment on the issue of res judicata. On April 3, 1974, the appellant filed an answer to the motion for partial summary judgment. On October 8, ...